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KeyCite Red Flag - Severe Negative Treatment

 Superseded by Statute as Stated in In re York, Cal., April 27, 1995

27 Cal.3d 424Supreme Court of California.

Gerald N. VAN ATTA, Jr., etal., Plaintiffs and Appellants,

v.Donald M. SCOTT, as Chief of Police,etc., et al., Defendants and Appellants.

S.F. 23946.|

July 3, 1980.|

As Modified on Denial of Rehearing Aug. 14, 1980.

Taxpayers' action was brought seeking to enjoinexpenditure of public funds in operation of bail moneyand “own recognizance” release systems as presentlyexisting in city and county. From a determination onthe merits by the Superior Court, City and County ofSan Francisco, Joseph G. Kennedy, J., the defendantpolice chief appealed. The Supreme Court, Bird, C.J., held that: (1) prosecution must bear burden ofproducing evidence of detainee's record of nonappearanceat prior court hearings and of severity of sentence thedetainee faces; (2) detainee must bear burden of producingevidence of community ties; (3) prosecution must bearburden of proof concerning detainee's likelihood ofappearing at future court proceedings; and (4) court is notconstitutionally required to issue a statement of reasonswhen “own recognizance” release is denied.

Affirmed as modified.

Newman, J., filed concurring opinion.

Clark, J., filed dissenting opinion in which Richardsonand Manuel, JJ., joined.

Opinion of Court of Appeal, 148 Cal.Rptr. 717, vacated.

West Headnotes (11)

[1] Constitutional Law

Rights, Interests, Benefits, or PrivilegesInvolved in General

Due process analysis under FederalConstitution requires a finding of a protectedliberty or property interest before anydetermination of procedures can be reached.U.S.C.A.Const. Amend. 14.

5 Cases that cite this headnote

[2] Constitutional LawFactors considered; flexibility and

balancing

Identification of dictates of due processgenerally requires consideration of (1) privateinterest that will be affected by the officialaction, (2) risk of an erroneous deprivationof such interest through procedures used,and probable value, if any, of additionalor substitute procedural safeguards, (3)dignitary interest in informing individualsof nature, grounds and consequences ofthe action and in enabling them to presenttheir side of the story before a responsiblegovernmental official, and (4) governmentalinterest, including function involved and fiscaland administrative burdens that additionalor substitute procedural requirement wouldentail. U.S.C.A.Const. Amend. 14; West'sAnn.Const. Art. 1, § 7.

13 Cases that cite this headnote

[3] Constitutional LawRelease

Due process does not require prosecution,at hearing in which it is determined whetherdetainee will be released prior to trial, to bearburden of producing evidence of detainee'slack of community ties. U.S.C.A.Const.Amend. 14; West's Ann.Const. Art. 1, § 7.

1 Cases that cite this headnote

[4] BailPresumptions and burden of proof

At a hearing bearing on issue of a detainee'spretrial release from custody, prosecution

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has burden of producing evidence ondetainee's record of appearance at priorcourt hearing and severity of sentence hefaces. U.S.C.A.Const. Amend. 14; West'sAnn.Const. Art. 1, § 7.

7 Cases that cite this headnote

[5] BailPresumptions and burden of proof

At a pretrial release hearing, detainee mustbear burden of producing evidence ofcommunity ties.

Cases that cite this headnote

[6] Constitutional LawBond, undertaking, or recognizance

Due process requires burden of proofconcerning detainee's likelihood of appearingfor future court proceedings to be borne byprosecution at “own recognizance” releasehearing. U.S.C.A.Const. Amend. 14; West'sAnn.Const. Art. 1, § 7; West's Ann.Pen.Code,§ 1318 et seq.

7 Cases that cite this headnote

[7] BailHearing and determination

Court is not constitutionally required to issuestatement of reasons whenever release on ownrecognizance is denied.

7 Cases that cite this headnote

[8] Municipal CorporationsNature and scope in general

Notwithstanding fact that aggrieved pretrialdetainees had standing, taxpayers hadstanding to challenge constitutionality of cityand county's pretrial release and detentionsystem under statutory section authorizingtaxpayer suits; overruling Gould v. People,56 Cal.App.3d 909, 128 Cal.Rptr. 743 andDi Suvero v. County of Los Angeles, 73Cal.App.3d 718, 140 Cal.Rptr. 895. West'sAnn.Code Civ.Proc. § 526a.

11 Cases that cite this headnote

[9] Declaratory JudgmentLicenses and Taxes

Statutory section authorizing taxpayer suitspermits suits for declaratory relief. West'sAnn.Code Civ.Proc. § 526a.

10 Cases that cite this headnote

[10] Constitutional LawJusticiability

Fact that, after trial of the action, onlydefendant who was responsible for pretrialdetainees in city had conceded priorto trial that the challenged system wasunconstitutional did not render nonjusticiablefor lack of adverse interests a taxpayers'suit challenging constitutionality of city andcounty's pretrial release and detention system.

6 Cases that cite this headnote

[11] Municipal CorporationsParties

San Francisco superior court bench wasnot an indispensable party whose nonjoinderdeprived Supreme Court of jurisdiction toentertain constitutional challenge to pretrialrelease and detention system employed bycity and county of San Francisco. West'sAnn.Code Civ.Proc. § 389.

4 Cases that cite this headnote

Attorneys and Law Firms

*429 ***150 **211 Morrison & Foerster, GirvanPeck, Kathleen V. Fisher, William Alsup, Dominic J.Campisi, McCutchen, Doyle, Brown & Enersen, JohnN. Hauser, Bruce G. Vanyo and Donn P. Pickett, SanFrancisco, for plaintiffs and appellants.

Linus Masouredis, Feldman, Waldman & Kline, MarkN. Aaronson, Herbert M. Rosenthal, Margaret G.

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Wilkinson, San Francisco, and Zona Sage, amici curiaefor plaintiffs and appellants.

George P. Agnost, City Atty., and Philip S. Ward, DeputyCity Atty., for defendants and appellants.

*430 Frank E. Farella, M. Laurence Popofsky, StephenV. Bomse, Heller, Ehrman, White & McAuliffe, SanFrancisco, John K. Van de Kamp, Dist. Atty., LosAngeles, Harry B. Sondheim, Roderick W. Leonard,Deputy Dist. Attys., Max Thelen, Jr., Robert G. Sproul,Jr., Marc Johnston, James P. Wiezel, Thelen, Marrin,Johnson & Bridges, San Francisco, Walter L. Wagner,Keith C. Sorenson, Dist. Atty., San Mateo, William W.Larsen, Chief Deputy Dist. Atty. and Paul F. Wendler,Deputy Dist. Atty., amici curiae for defendants andappellants.

Opinion

BIRD, Chief Justice.

This court must decide the narrow issue as to whether thetrial court was correct when it held that the pretrial releaseand detention system employed by the City and County ofSan Francisco violates the due process clauses of the stateand federal Constitutions.

I

When an individual is arrested in San Francisco threemethods of pretrial release are available: (1) citation (Pen.Code, ss 853.5, 853.6); (2) bail (Pen. Code, s 1268 et seq.);or (3) own recognizance release (Pen. Code, s 1318 et

seq.). 1

Release by citation is limited by police regulationsto misdemeanor offenses where the arrestee has nooutstanding warrants and resides in, or within 30 milesof, San ***151 **212 Francisco. According to thoseregulations, a citation should not be issued, even to onecharged with a misdemeanor, if (1) the identity of thearrestee is not ascertainable; (2) the arrestee requiresmedical examination or care that would not be provided ifhe *431 were merely cited; (3) there is reasonable cause tobelieve the misdemeanor violation will continue; (4) thereis a threat of danger or resistance to the public or lawenforcement personnel; or (5) prosecution of the offenseor of another offense would be jeopardized. Otherwise,

release by citation is wholly within the discretion of thearresting officer.

Those arrested individuals, who are booked 2 rather thancited (other than those detained for a parole or probationviolation or those charged with a nonbailable offense),are allowed immediate release upon the posting of bailin the amount specified in the master bail schedule.(Pen. Code, s 1269b.) Release under the bail scheduledoes not entail inquiry into the detainee's family orcommunity ties, employment history, financial condition,past record for appearance in court or any other evidencethat the detainee will appear. The schedule sets forth theamount of bail in accordance with the seriousness of theoffense charged. This sliding scale based on seriousness isused despite the fact that the evidence introduced belowindicated that persons accused of misdemeanors are morelikely to fail to appear at subsequent proceedings than arefelony defendants.

Anyone who is not released on bail or citation must bearraigned without unnecessary delay and in any eventwithin 48 hours of his arrest (not including Sundays andholidays). (Pen. Code, s 825.) Bail may be reset by thecourt at that time for those detainees still in custody. (SeePen. Code, ss 815a, 823, 849.) When setting bail, the courtconsiders the likelihood of the detainee appearing in court,the seriousness of the offense charged, and the detainee'sprevious criminal record. (Pen. Code, s 1275.) Accordingto the evidence adduced below, San Francisco judges givelittle or no consideration to the financial resources of thedetainee. The judge does not know whether the detaineewill be able to meet the amount of bail that is set. As aresult, the judge has no way of knowing how strong anincentive to appear is created by setting bail at a particularfigure.

If an individual is not released on citation or does notpost bail, he may seek release on his own recognizance.(Pen. Code, s 1318.) The great majority of detainees whofollow this route simply do not have the *432 funds topost bail. For this reason, own recognizance release is thepoor person's alternative to bail.

In seeking release on their own recognizance, detaineesmay be assisted by the OR project. According to therecord, the OR project in San Francisco processes ORrelease applications in the following manner. Project staffmembers conduct interviews with those detainees they

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are able to contact in city prison. The prior record ofthe detainee is summarized in the project's report, andrelevant information regarding the detainee's community

ties is verified by the project whenever possible. 3 Thepolice report on the incident leading to the arrest isobtained by the project from police files and is attachedto the application. A point system, which gives positivepoints to such facts as residence, family or employmentin the Bay Area, is used to evaluate the detainee'slikelihood of appearing for future court proceedings.The highest possible score is 12 positive points. Priorconvictions contribute negative points, and persons withless than five points are automatically excluded fromfurther consideration by the OR project. If an applicantscores five or ***152 **213 more points, his case is

presented to the court by staff members of the project. 4

The trial court found that in San Francisco, whenapplications are presented to the court, the presumptionis against OR release and the detainee bears the burden ofshowing that his application is meritorious. Further, suchrelease is granted or denied as a matter of grace and istotally within the unfettered discretion of the trial judge.(Pen. Code, s 1318.2.) Evidence was introduced whichindicated that judges apply widely different criteria indeciding whether to grant OR release, with the result thatvirtually identical applications are disposed of differently.Overall, only 17 percent of those individuals arrested andinterviewed by the OR project were released on their ownrecognizance. It was found that the hearings with respectto OR release are brief and informal. Judges generallymake their decision without providing written findingsor even stating on the record their reasons for denyingrelease.

*433 Approximately one-half of all detainees in SanFrancisco are unable to post bail and are not released ontheir own recognizance. As a direct result, they remain injail until their cases are resolved. There was unanimousagreement among the witnesses at the trial below thatmany of these persons could safely be released on OR orsupervised OR. The defendants' own witness, professionalbondsman Al Graf, testified that “the people who arebeing released are the affluent. The poor are staying injail.”

In a taxpayer action filed pursuant to Code of CivilProcedure section 526a, plaintiffs attacked the statutesproviding for pretrial release and San Francisco's

application of those statutes. The defendants, formerSan Francisco Chief of Police Donald M. Scott andformer Sheriff Richard D. Hongisto, maintained custodyof all detainees held by the City and County of SanFrancisco prior to trial. Defendant Hongisto admittedin his answer that the system was unconstitutional, butrefused to alter the existing practices until the systemwas officially declared unconstitutional. Defendant Scottdenied the allegations in the complaint and contended thatthe detention system was lawful.

Following a seven-day trial, the court held that plaintiffshad standing to sue under section 526a of the Code of CivilProcedure, that a true and genuine case or controversyexisted, and that the court had jurisdiction to adjudicatethe issues. Further, the court held that the challengedstatutes providing for pretrial release, as employed in SanFrancisco, violated the due process clauses of the federaland state Constitutions in that: (1) the prosecution is notrequired to assume the burden of proving that bail isnecessary to assure the presence of the detainee in court;and (2) the courts are not required to furnish a writtenstatement of reasons for denial of own recognizancerelease. The trial court further held that the expenditureof revenues by San Francisco to implement its existingsystem of pretrial release and detention was illegal untiland unless present practices and procedures are modifiedto provide the missing procedural safeguards. This appeal

followed. 5

*434 ***153 **214 II

[1] [2] In People v. Ramirez (1979) 25 Cal.3d 260,269, 158 Cal.Rptr. 316, 599 P.2d 622, this court heldthat the extent to which procedural due process relief isavailable under the California Constitution depends on acareful weighing of the private and governmental interests

involved. 6 The procedures that are constitutionallyrequired are those that will, without unduly burdeningthe government, maximize the accuracy of the resultingdecision and respect the dignity of the individual subjectedto the decision-making process. (Id. at pp. 268-269,158 Cal.Rptr. 316, 599 P.2d 622.) More specifically,“identification of the dictates of due process generallyrequires consideration of (1) the private interest thatwill be affected by the official action, (2) the risk ofan erroneous deprivation of such interest through theprocedures used, and the probable value, if any, of

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additional or substitute procedural safeguards, (3) thedignitary interest in informing individuals of the nature,grounds and consequences of the action and in enablingthem to present their side of the story before a responsiblegovernmental official, and (4) the governmental interest,including the function involved and the fiscal andadministrative burdens that the additional or substitute

procedural requirement would entail.” 7 (Id., at p. 269,158 Cal.Rptr., at p. 321, 599 P.2d, at pp. 627-28.)

*435 The testimony in the record, which is corroboratedby numerous courts and commentators from this andother jurisdictions, indicates that the private interestsaffected by the decision as to whether an individual willbe released prior to trial are great. That decision affectsthe detainee's liberty, a fundamental interest second onlyto life itself in terms of constitutional importance. (Peoplev. Saffell (1979) 25 Cal.3d 223, 228, 157 Cal.Rptr. 897,599 P.2d 92; People v. Olivas (1976) 17 Cal.3d 236,251, 131 Cal.Rptr. 55, 551 P.2d 375.) A detainee who isdenied pretrial release remains in jail, often for periodsof several months, despite the fact that there has beenno determination of his guilt or innocence. Confined ina 12-man “gang cell” measuring 23 feet, 7 inches by 8

feet, 4 inches, 8 he is furnished jail food which consists ofa sandwich or a soft substance that can be eaten with aspoon. He sleeps on a bunk without pillows or sheets. Heis allowed no visitors or contact with the outside worldexcept for court-related appearances and conversationsby telephone through a glass partition. Exercise is limitedto a one-hour period two ***154 **215 or three timesa week. In short, a denial of pretrial release inflicts adirect “grievous loss” upon the detainee. (Cf. Morrissey v.Brewer, supra, 408 U.S. at p. 481, 92 S.Ct. at p. 2600.)

There are other important deprivations which followpretrial incarceration. The detainee's ability to adequately

prepare a defense is greatly curtailed 9 and consultation

with an attorney is severely impaired. 10 The only placean attorney can speak with his client is in the jail *436itself, a place frequently located far from, and lacking thefacilities at, the attorney's office. Moreover, the detainee'scommunications at the jail may be inhibited due to thelack of privacy and the common fear that the jail may be“bugged.” (See Cohen, supra, at p. 1028; Hongisto, supra,at p. 578.)

Imprisonment severely hinders the detainee's ability togather evidence and interview witnesses. Consequently,the effectiveness of counsel's assistance and the detainee'sright to a fair trial are generally impaired. (See Trends,supra, at p. 689; Cohen, supra, at pp. 1028-1029; Beyondthe Bail System, supra, at pp. 1123-1124; Hongisto, supra,at p. 578.) Further, since incarceration generally meansloss of income and often employment, the detainee'sability to retain an attorney of his own choosing may belimited. (See Thaler, supra, at p. 452.) If the detainee isunable to hire a private attorney, he must rely on theservices of often overworked court-appointed counsel.

Finally, the fact that the detainee is frequently brought tothe courtroom in jail clothing, in handcuffs or otherwisein obvious custody as opposed to entering freely withcounsel and perhaps his family often engenders subtleprejudices in the judge and jury that necessarily interferewith the detainee's right to a fair trial. (See Trends,supra, at p. 690; Cohen, supra, at p. 1029; Goldfarb,Ransom (1965) p. 42 (hereafter Goldfarb); Wald, PretrialDetention and Ultimate Freedom: A Statistical Study(1964) 39 N.Y.U.L.Rev. 631, 632.)

Pretrial detention also has important consequences forthe detainee outside the courtroom. It may imperil hisjob, interrupt his source of income, and impair his family

relationships. 11 However, the burdens associated withpretrial detention are by no means limited to the detaineeand his family. The total costs of pretrial confinementconstitute a drain on public funds as well. (Cf. Morrisseyv. Brewer, supra, 408 U.S. at p. 477, 92 S.Ct. at p.2598; see also People v. Vickers (1972) 8 Cal.3d 451, 458,105 Cal.Rptr. 305, 503 P.2d 1313; Lasker, PresumptionAgainst Incarceration, supra, 7 Hofstra L.Rev., at p.413; Committee on Crime, supra, at pp. 23-25; Hongisto,supra, at pp. 578-579.) The most obvious costs are thoseof providing the detainee *437 with food, shelter andclothing, as well as ***155 **216 maintaining securityin the jail. These expenditures are substantial. (Committeeon Crime, supra, at pp. 23-24.) Moreover, when ancillarycosts are considered, such as welfare payments to familiesof detainees who lose their income, the burden becomeseven larger.

Beyond the monetary costs, pretrial detention spawnsadditional, more subtle social burdens. The testimonyof Chief Deputy Sheriff Bangston, the person chargedwith the supervision of the San Francisco County jails, is

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instructive on this point: “The other reason, and I'm notreferring to a prisoner that's in and out, or whatever, butto a person that has been in once or twice, has had veryfew arrests, that type is susceptible to the influence, if youkeep him in jail, and his character and moral standardsgo by. Such as, if you take a person with one juvenilearrest and then he reaches maturity and takes a fall, isarrested and ends up in jail, quite often the influence thathe suffers in jail will turn him to an extent anti-social, andanti-establishment, and anti-so-called accepted system, hewill try to buck it. I can't think of anyone coming to jailfor the first time, in spite of their moral strength, that willnot be influenced.” (Cf. Morrissey v. Brewer, supra, 408U.S. at p. 484, 92 S.Ct. at p. 2601; see also, Thaler, supra,at p. 454; Lasker, Presumption Against Incarceration,supra, 7 Hofstra L.Rev. at p. 411; O'Rourke & Carter,The Connecticut Bail Commission (1970) 79 Yale L.J. 513;Comment, Incarcerating the Innocent, Pretrial Detentionin Our Nation's Jails, supra, 21 Buffalo L.Rev. at pp.903-904.)

Balanced against these substantial interests favoringpretrial release are several competing interests. Thegovernment's interest in assuring the presence of theaccused at all court proceedings is a compelling one. Thegovernment also has a substantial interest in seeing that itachieves its objective of assuring the accused's presence atfuture proceedings at a reasonable cost.

Plaintiffs urge that the procedures employed in SanFrancisco do not properly strike the balance between thesegovernmental and nongovernmental interests. Plaintiffscontend, and the trial court held, that due process requiresboth the burden of producing evidence and the burden ofproof to be borne by the prosecution at the OR hearing.These two rulings must be evaluated separately.

The burden of producing evidence is “the obligationof a party to introduce evidence sufficient to avoid aruling against him on the issue.” *438 (Evid.Code, s110.) The sole issue at the OR hearing is whether thedetainee will appear for subsequent court proceedingsif released OR. (See In re Underwood (1973) 9 Cal.3d345, 348, 107 Cal.Rptr. 401, 508 P.2d 721.) To answerthis question the trial court must consider the followingfactors: (1) the detainee's ties to the community, includinghis employment or other sources of income (e. g., welfarepayments), the duration and location of his residence,his family attachments, his property holdings, and any

independent reasons for wanting to leave or remain inthe community (e. g., parole or immigration status); (2)the detainee's record of appearance at past court hearingsor of flight to avoid prosecution; (3) the severity of thesentence the detainee faces. (See In re Podesto (1976) 15

Cal.3d 921, 934-935, 127 Cal.Rptr. 97, 544 P.2d 1297.) 12

[3] In the present case, the trial court found that theprosecution should bear the burden of producing evidenceto establish the detainee's ties to the community. However,the detainee is clearly the best source for this informationand for names of individuals who could verify suchinformation. Moreover, the detainee has a substantialincentive to cooperate in providing this information. Ifthe burden of producing this evidence were placed onthe prosecution, that incentive would disappear. Thegovernment would then have to conduct its ***156**217 own independent investigation, a costly and time-

consuming undertaking. Since the government would notbe able to gather information concerning the detainee'scommunity ties as expeditiously as could the detainee,a dilemma would result. Either the OR hearing wouldhave to be delayed causing the prolonged detentionof individuals entitled to release or the hearing wouldproceed with the prosecution unable to sustain its burdenforcing the court to rule in favor of the release of a greaternumber of individuals who might fail to appear. Such asituation would serve the interests of neither the detaineewho merits pretrial release nor the government. Therefore,this court is persuaded that due process does not requirethe prosecution to bear the burden of producing evidenceof the detainee's lack of community ties. The trial courterred when it held to the contrary.

[4] Different considerations govern the proper allocationof the burden of producing evidence on the detainee'srecord of appearance at *439 prior court hearings andthe severity of the sentence he faces. The severity ofthe potential sentence can be readily determined by thecourt from the complaint and the applicable provisionsof the Penal Code or other codes cited. The detainee'srecord of appearance at past court hearings can sometimesbe discerned from his “rap sheet.” In other cases, thisinformation should be relatively easy and inexpensivefor the prosecution to secure. Accordingly, this courtconcludes that the prosecution should bear the burden ofproducing evidence on these issues.

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A separate question is presented by the proper allocationof the burden of proof. The burden of proof is “theobligation of a party to establish by evidence a requisitedegree of belief concerning a fact in the mind of the trierof fact or the court.” (Evid.Code, s 115.) It is a rulethat tells the factfinder how to decide close cases. (SeeUnderwood, The Thumb on the Scales of Justice: Burdensof Persuasion in Criminal Cases (1977) 86 Yale L.J. 1299(hereafter Underwood).) The court below found that thisburden has in practice been borne entirely by the detaineeat the OR hearing. The operational effect of this practiceis to create among trial courts a “. . . Pavlovian responseof money bail (and hence a denial of OR release) to everyuncertainty concerning the defendant.” (Younger, supra,at p. 266; see also, Thaler, supra, at p. 446, fn. 28.) As aresult, many detainees who could safely be released ORare nevertheless deprived of their freedom.

An individual's interest in his freedom has always beenheld sacrosanct. For this reason, it has been a basic tenetof “our society that it is far worse to convict an innocentman than to let a guilty man go free.” (In re Winship(1970) 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d368 (conc. opn. of Harlan, J.); Patterson v. New York(1977) 432 U.S. 197, 208, 97 S.Ct. 2319, 2326, 53 L.Ed.2d281.) Placing the burden of proof on the government isone means by which our system of justice gives voiceto this precept. See Underwood, supra, at p. 1307.) TheUnited States Supreme Court has eloquently explainedthe reason for this allocation of the burden of proof: “Inall kinds of litigation it is plain that where the burdenof proof lies may be decisive of the outcome. (Citations.)There is always in litigation a margin of error, representingerror in factfinding . . . . Where one party has at stakean interest of transcending value as a criminal defendanthis liberty this margin of error is reduced as to him bythe process of placing on the other party the burden ofproducing a sufficiency of proof in the first instance, andof persuading the factfinder at the conclusion of the trial ofhis guilt beyond a reasonable doubt. . . .” ( *440 Speiserv. Randall (1958) 357 U.S. 513, 525-526, 78 S.Ct. 1332,1342, 2 L.Ed.2d 1460; accord Mullaney v. Wilbur (1975)421 U.S. 684, 701, 95 S.Ct. 1881, 1890, 44 L.Ed.2d 508.)

This court has expressed similar views. Thus, theprosecution has been held to bear a heavy burden of proof“. . . in any proceeding in which the state threatens todeprive an individual of his ‘good name and freedom.’ ”***157 **218 (People v. Burnick (1975) 14 Cal.3d 306,

324, 121 Cal.Rptr. 488, 500, 535 P.2d 352, 364 (mentallydisordered sex offender hearing); accord Conservatorshipof Roulet (1979) 23 Cal.3d 219, 229-230, 152 Cal.Rptr.425, 590 P.2d 1 (appointment of conservator); People v.Thomas (1977) 19 Cal.3d 630, 641, 139 Cal.Rptr. 594, 566P.2d 228 (narcotics addict commitment proceeding); In reArthur N. (1976) 16 Cal.3d 226, 240-241, 127 Cal.Rptr.641, 545 P.2d 1345 (commitment of a word to the YouthAuthority).)

The logic of those cases is applicable here. If an adverseruling is made at the OR hearing, the detainee's loss

of liberty is total. 13 He is incarcerated, frequently fora substantial period of time, in San Francisco's countyjail, which has been characterized as “one of the worstdetention facilities in the state.” (Committee on Crime,supra, at p. 13.) Incarceration not only restricts thedetainee's freedom but also impairs his ability to preparea defense and disrupts his employment, family and socialrelationships. (Ante, at pp. 153-155 of 166 Cal.Rptr., atpp. 153-155 of 166 P.2d.) As a result of an adverse rulingat the OR hearing, the detainee also suffers the stigma of a“loss of good name.” (See Thaler, supra, at pp. 452-454.)Pretrial imprisonment is likely to be mistaken for a findingof the detainee's guilt rather than being recognized ashis inability to make bail or persuade the judge that hewould appear at future proceedings. At the very least, thedetainee's removal from his home, job and communitybroadcasts the fact of his arrest.

Moreover, the threat of an unwarranted restraint on anindividual's liberty is at its greatest where the decisionbeing made is predictive in nature. (People v. Burnick,supra, 14 Cal.3d at p. 328, 121 Cal.Rptr. 488, 535 P.2d352; see also *441 Conservatorship of Roulet, supra, 23Cal.3d at pp. 234-235, 152 Cal.Rptr. 425, 590 P.2d 1.)To deprive an individual of his freedom on the basis ofspeculation about his future conduct is contrary to thepresumption of innocence that “lies at the foundation” ofour judicial system. (See Coffin v. United States (1895)156 U.S. 432, 453, 15 S.Ct. 394, 402, 39 L.Ed. 481.) Suchdecision making is also peculiarly subject to abuse andthreatens to undermine the respect and confidence of thecommunity in the uniform application of the criminal law.(See In re Winship, supra, 397 U.S. at p. 364, 90 S.Ct. atp. 1072.)

[5] There is an additional consideration involved inthe case before this court. A major function of the

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allocation of the burden of proof is to offset the effectof distortions in the fact-finding process that operateagainst the detainee. Conservatorship of Roulet, supra, 23Cal.3d at p. 233, 152 Cal.Rptr. 425, 590 P.2d 1; see alsoUnderwood, supra, at pp. 1306-1307.) There are severalsources of such distortion at the OR hearing.

Distortion results from the fact that it is difficult fora detainee to marshal any tangible evidence of hiscommunity ties. His incarceration prevents him fromeffectively locating witnesses or gathering other evidenceto establish his local contacts and personal reliability.Some courts may be reluctant to accept the detainee's oralrepresentations if unverified by other sources. (Cf. Wolffv. McDonnell (1974) 418 U.S. 539, 583, 94 S.Ct. 2963,2988, 4 L.Ed.2d 935 (conc. and dis. opn. of Marshall,J.); Goldfarb, supra, at pp. 157-158.) Therefore, he mayremain confined merely because he is unable to produceevidence, beyond his own word, of his community ties,rather than because such ties are lacking.

Distortion also results from deliberate “overcharging” bythe district attorney, a not infrequent practice accordingto evidence presented at trial. Overcharging the filing ofmore charges than are warranted ***158 **219 by thefacts gives the court the false impression that the detaineewill be eligible for a greater sentence than is likely to be thecase. This gives an inaccurate picture to the trial court ofthe detainee's likelihood of fleeing the jurisdiction.

Thus, the value of placing the burden of proof uponthe prosecution concerning the detainee's likelihood ofappearing for future court proceedings is three-fold. Ithelps to preserve the respect for the individual's libertyand for the presumption of innocence that lies at thefoundation of our judicial system, to maintain the respectand confidence of the *442 community in the uniformapplication of the law and to systematically correct certainbiases inherent in the OR decision-making process.

Moreover, placing the burden of proof on the prosecutionshould achieve these goals without significantlyharming the government's interests. These interests arecompromised only if a higher percentage of arrestees failto make their scheduled court appearances. However, thedefendants in the present case were unable to present anyevidence whatsoever to establish that an increase in thenumber of OR releases in San Francisco would resultin a significantly higherfailure-to-appear rate. Indeed, all

witnesses agreed that many persons were detained in San

Francisco jails who could safely be released OR. 14 Severalwitnesses opined that even if nearly all detainees wereso released, the failure-to-appear rate would not increasesubstantially.

The experiences in other jurisdictions, as reported bywitnesses at the trial below and by commentators,substantiate these conclusions. (E. g., O'Rourke & Carter,The Connecticut Bail Commission, supra, 79 Yale L.J.p. 515; Hongisto, supra, at pp. 635-636; Comment,The Bail System and Equal Protection (1969) 2 LoyolaL.A.L.Rev. 71, 80-81; Note, Pretrial Release in California:Proposed Reforms of an Unfair System (1977) 8 PacificL.J. 841, 853.) The courts of Oregon and of theDistrict of Columbia operate under systems that createa presumption in favor of OR release. Or.Rev.Stat., s135.245(3); 18 U.S.C. s 3146; Wood v. United States,(D.C.Cir.1968) 391 F.2d 981, 983.) As a result, asignificantly higher percentage of detainees is released

OR in those jurisdictions than in San Francisco. 15

The uncontradicted statistical evidence presented at trialindicates that despite the greater rate of OR release,the failure-to-appear rate for those released OR was nohigher in those jurisdictions than in San Francisco, andwas no greater than the failure-to-appear rate for thosereleased on money bail in those jurisdictions. (See alsoNote, Pretrial Release in California: Proposed Reformsof an Unfair System, supra, 8 Pacific L.J. 841, 861-862;Younger, supra, at p. 275.)

*443 The director of the San Mateo OR projecttestified that the administrators of that project wereso pleased with its initial success, they lowered thenumber of points required for a release recommendation

from five to four. 16 As a result, more detainees werereleased OR, yet the gross failure-to-appear rate remained

only approximately 2 percent. 17 Similar testimony wasreceived from the administrators of the New Yorkand Philadelphia pretrial services agencies. Those citiesachieved OR release rates significantly higher thanSan Francisco without ***159 **220 any significantincrease in the failure-to-appear rate. (See also Comment,The Bail System and Equal Protection, supra, 2 LoyolaL.A.L.Rev. at p. 80.)

Several reasons exist to explain why an individual whois released without having posted bail returns faithfully

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to make his court appearances. First, failure to appearfollowing OR release is a separate offense. (Pen. Code, ss1319.4 and 1319.6.) Second, if the individual is innocent,he has the incentive to appear in order to prove it. Even ifhe is not innocent, he has the incentive to appear in orderto preserve his position in plea bargaining and to establisha record of reliability that may benefit him in the future (e.g., at the time of sentencing). Third, the individual realizesthat if he fails to appear now and is subsequently arrestedfor a separate offense, he will not likely be granted ORrelease at that time. Finally, there are intangible factorssuch as the individual's sense of responsibility after havinggiven his word.

The defendants were unable to affirmatively demonstratein the trial court that the government's interests in seeingthat arrestees make their required appearances in courtwould be jeopardized by placing the burden of proofon the prosecution. Further, the evidence presented attrial by the plaintiffs, including the experiences of otherjurisdictions, indicates that the government's interestswould not be compromised.

Finally, placing the burden of proof on the prosecutionwill not unduly increase the government's administrativecosts. In contrast to the burden of producing evidence, theburden of proof imposes no additional costs or obligationsat the OR hearing itself. The only added burden that mightbe associated with this additional procedural safeguardis *444 the cost of locating and bringing to courtany additional individuals who fail to appear for theirscheduled appearances. However, since it does not appearthat thefailure-to-appear rate would significantly increase,the relative costs (i. e., the ratio of total costs to the numberof detainees released) should remain approximately thesame, if not decrease. Moreover, the increase in absolutecosts that this would entail should not be great. SeeCohen, supra, at p. 1030.) Any additional costs createdby placing the burden of proof on the prosecution shouldbe more than offset by the savings resulting from havingto maintain fewer persons in custody. (See Hongisto,supra, at pp. 578-579; Younger, supra, at pp. 264-265;Committee on Crime, supra, at pp. 23-25.)

[6] For the several reasons discussed above, this court hasdetermined that the probable value of placing the burdenof proof on the prosecution would be great and that thepotential harm to the government's interests, includingany administrative costs that the procedural requirement

might entail, would be minimal. Accordingly, it isconcluded that due process requires the burden of proofconcerning the detainee's likelihood of appearing forfuture court proceedings to be borne by the prosecutionat the OR hearing.

[7] Finally, this court must consider whether due processrequires a court to issue a written statement of reasonswhenever OR release is denied. In recent years, thiscourt as well as the United States Supreme Court hashad occasion to emphasize in a wide variety of contextsthat due process requires government decisions, whichaffect important individual interests, to be accompaniedby a statement of reasons explaining the basis for suchdecisions. (E. g., In re Sturm (1974) 11 Cal.3d 258,269-270, 113 Cal.Rptr. 361, 521 P.2d 97 (denial of parole);People v. Ramirez, supra, 25 Cal.3d at p. 276, 158Cal.Rptr. 316, 599 P.2d 622 (exclusion from rehabilitationcenter); Morrissey v. Brewer, supra, 408 U.S. at pp. 487,489, 92 S.Ct. at p. 2603 (revocation of parole); Wolff v.McDonnell, supra, 418 U.S. at p. 564, 94 S.Ct. at p. 2978(revocation of good-time credits); Kent v. United States(1966) 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d84 (juvenile court's waiver of jurisdiction).)

This court recently explained the worthy purposes suchprocedures serve. “They help to assure a realistic reviewby providing ***160 **221 a method of evaluatinga judge's decision or order; they guard against carelessdecision making by encouraging the trial judge toexpress the grounds for his decision; and they preservepublic confidence in the fairness *445 of the judicialprocess.” (In re John H. (1978) 21 Cal.3d 18, 23, 145Cal.Rptr. 357, 359, 577 P.2d 177, 179; accord In rePodesto, supra, 15 Cal.3d at p. 937, 127 Cal.Rptr. 97, 544P.2d 1297.)

These purposes are particularly pertinent in the setting ofthis case because it is not unusual for judges to keep adetainee in custody for punitive purposes or as a means ofpreventive detention. (See also Mosk, The Purpose of Bailin the Administration of Justice, supra, 54 Chi.Bar.Rec.at p. 186; Goldfarb, supra, at pp. 46-49; Thaler, supra, atp. 447.) Whatever may be said as to the propriety of theseconsiderations where a defendant seeks bail on appeal (Inre Podesto, supra, 15 Cal.3d at p. 935, 127 Cal.Rptr. 97,544 P.2d 1297), they are not proper considerations where,as at the pretrial OR hearing, the detainee has not beenconvicted of any crime. (In re Underwood, supra, 9 Cal.3d

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at pp. 348, 350, 107 Cal.Rptr. 401, 508 P.2d 721.) Plaintiffsurge that the requirement of a written statement of reasonsfor a denial of OR release would reduce the incidence ofthese improper uses of pretrial detention.

Moreover, it is argued that requiring a written statementof reasons for the denial of OR release would ensurethat a detainee's dignitary interest is recognized. Plaintiffsnote that in Ramirez, supra, 25 Cal.3d at page 276, 158Cal.Rptr. at page 326, 599 P.2d at page 632, this courtsaid, “ ‘(t)he respect for individual autonomy that isat the foundation of procedural due process imposes adistinct obligation upon the government to explain fullyits adverse status decision.’ ” Preserving the appearance offairness is particularly important in the pretrial detentionsetting. As Justice Marshall said in Wolff v. McDonnell,supra, 418 U.S. at page 589, 94 S.Ct. at page 2991 (conc.and dis. opn.), quoting Palmigiano v. Baxter (1st Cir.1973) 487 F.2d 1280, 1283: “ ‘There is nothing morecorrosive to the fabric of a public institution such asa prison than a feeling among those whom it containsthat they are being treated unfairly’.” (Accord Wright v.Enomoto (1976) D.C., 462 F.Supp. 397, 403, affd. (1978)434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756; Payne v.Superior Court (1976) 17 Cal.3d 908, 922, 132 Cal.Rptr.405, 553 P.2d 565.)

However, this court has not required written findings inevery type of proceeding. (E. g., In re John H., supra,21 Cal.3d 18, 145 Cal.Rptr. 357, 577 P.2d 177 (decisionto commit a juvenile to the Youth Authority); People v.Edwards (1976) 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d995 (denial of probation).) The administrative burdencreated by requiring a written statement of reasons mustbe weighed against the nongovernmental interests. In thepresent case, that burden would be particularly acute.

*446 The volume of cases affected would be far greaterin the present context than in any setting where this courthas previously granted the requested relief. The right to awritten statement of reasons for denial of pretrial releasewould apply to virtually every arrestee, not just to afraction of those found guilty. (Compare In re Podesto,supra, 15 Cal.3d 921, 127 Cal.Rptr. 97, 544 P.2d 1297; Inre Sturm, supra, 11 Cal.3d 258, 113 Cal.Rptr. 361, 521P.2d 97.)

The increase in amount of judge time per OR hearingalso militates against imposing a requirement of a written

statement of reasons. A finding by the court that onespecific factor is lacking is not usually sufficient to deny anapplication for OR release. Thus, the court would be dutybound to make written findings on a multitude of factorson each occasion where OR release is denied.

It is also significant that there are less burdensomeprocedures available that would at least partiallysafeguard the interests sought to be protected by arequirement of a written statement of reasons. Althoughnot compulsory, an oral statement of reasons for denialof pretrial release would be beneficial. (Cf., People v.Edwards, supra, 18 Cal.3d at p. 805, fn. 12, ***161**222 135 Cal.Rptr. 411, 557 P.2d 995.) Moreover, an

arrestee is entitled to “an automatic review of the orderfixing the amount of his bail” within “five days from thetime of the original order fixing the amount of his bail on

the original accusatory pleading.” (Pen. Code, s 1320.) 18

Since the Constitution does not compel a trial judge toissue a written statement of reasons whenever OR releaseis denied, the trial court erred when it found to thecontrary.

In summary, this court holds that: (1) the prosecutionmust bear the burden of producing evidence of thedetainee's record of nonappearance at prior court hearingsand of the severity of sentence the detainee faces; (2) thedetainee should bear the burden of producing evidenceof community ties; (3) the prosecution must bear theburden of proof concerning the detainee's likelihood ofappearing at future court proceedings; and (4) the courtis not constitutionally required to issue a statement of

reasons when OR release is denied. 19

*447 III

One last concern remains. Is there merit to any ofthe following procedural questions raised on behalfof defendants: (1) do taxpayers have standing to sueunder Code of Civil Procedure section 526a where otherpersons directly affected by the challenged system pretrialdetainees also have standing to sue; (2) does section 526aauthorize taxpayers' suits for declaratory relief; (3) is thiscase nonjusticiable for lack of adverse interests; and (4) isthe San Francisco Superior Court bench an indispensableparty whose nonjoinder deprives this court of jurisdiction?

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Section 526a authorizes a taxpayer to file “(a)n actionto . . . prevent ( ) any illegal expenditure of . . .

funds, . . . of a . . . city and county of the state . . . .” 20

“The primary purpose of this statute, originally enactedin 1909, is to ‘enable a large body of the citizenry tochallenge governmental action which would otherwisego unchallenged in the courts because of the standingrequirement.’ ” (Blair v. Pitchess (1971) 5 Cal.3d 258,267-268, 96 Cal.Rptr. 42, 48-49, 486 P.2d 1242, 1248-49.)That section provides “a general citizen remedy forcontrolling illegal governmental activity.” (White v. Davis(1975) 13 Cal.3d 757, 763, 120 Cal.Rptr. 94, 98, 533 P.2d222, 226; Wirin v. Parker (1957) 48 Cal.2d 890, 894, 313P.2d 844, citation omitted.)

[8] California courts have consistently construedsection 526a liberally to achieve its remedial purpose.Accordingly, the existence of individuals directly affectedby the challenged governmental action here pretrialdetainees has not been held to preclude a taxpayers' suit.Numerous decisions have affirmed a taxpayer's standingto sue despite the existence of potential plaintiffs whomight also have had standing to *448 challenge the

subject actions or stat **223 utes. ***162 21 Forexample, in Blair, supra, 5 Cal.3d 258, 96 Cal.Rptr. 42,486 P.2d 1242, this court permitted taxpayers to maintainan action challenging the claim and delivery statute eventhough aggrieved persons directly affected by its operationalso had standing to sue.

Nevertheless, relying on Gould v. People (1976) 56

Cal.App.3d 909, 128 Cal.Rptr. 743 22 and Di Suvero v.County of Los Angeles (1977) 73 Cal.App.3d 718, 140

Cal.Rptr. 895, 23 defendants argue that plaintiffs cannotmaintain this suit because aggrieved pretrial detaineesalready have standing. Such reliance is misplaced. Gouldsought to avoid the misuse of taxpayer suits as vehiclesfor mounting collateral attacks on the correctness ofjudicial rulings in particular cases. That threat is posedby a taxpayer suit only when a person “file(s) a collateralaction against a judge under the guise of a taxpayer's suitcontesting the outcome of any civil or criminal actionin which he believe(s) the trial court ruled erroneously.”(Gould v. People, supra, 56 Cal.App.3d at p. 922, 128Cal.Rptr. at p. 751.) Unlike the plaintiffs in Gould, theplaintiffs in the present case have neither joined judicialofficers as party defendants nor sought to upset anyparticular judge's decision denying bail or OR release.

Moreover, the plaintiffs in the present case do not haveanother existing forum in which to challenge the pretrialdetention system.

*449 Di Suvero represents an unwarranted extension of

Gould. 24 Unlike the plaintiffs in Gould, the Di Suverotaxpayer was not a defendant in any criminal actionand, therefore, had no other forum in which to press***163 **224 his claim. More importantly, the threat of

a collateral attack upon a pending action was not presentin Di Suvero, since that taxpayer's suit did not contest theoutcome of a particular case.

The holding in Di Suvero is contrary to the many casesin which this court has upheld a taxpayer's right to bringa suit despite the existence of directly affected potentiallitigants. (Cf., ante, at p. 162, fn. 24 of 166 Cal.Rptr.,at p. ——, fn. 24 of —- P.2d.) These decisions are notdiscussed in Di Suvero or in Gould, upon which DiSuvero relied. This court reaffirms that taxpayers maymaintain an action under section 526a to challenge anillegal expenditure of funds even though persons directlyaffected by the expenditure also have standing to sue. Tothe extent that Di Suvero and Gould are inconsistent withthis rule, they are hereby disapproved.

[9] Next, it is contended that section 526a does notauthorize this action for declaratory relief. Section 526apermits a taxpayer action “to obtain a judgment, . . .restraining and preventing any illegal expenditure” ofpublic funds. (Emphasis added.) While such languageclearly encompasses a suit for injunctive relief, taxpayersuits have not been limited to actions for injunctions.Rather, in furtherance of the policy of liberally construingsection 526a to foster its remedial purpose, our courts

have permitted taxpayer suits for declaratory relief, 25

*450 damages 26 and mandamus. 27 To achieve the“socially therapeutic purpose” of section 526a, “provisionmust be made for a broad basis of relief. Otherwise,the perpetration of public wrongs would continue almostunhampered.” (The Public Interest Litigant, supra, 10Loyola L.A.L.Rev. at p. 340.) Accordingly, section 526a

authorizes this suit for declaratory relief. 28

[10] It is further argued that the requisite adverseinterests are lacking in this case. This contention is basedon the assertions that (1) after the trial of this actionwas concluded, the chief of police was relieved of all his

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prior responsibility for pretrial detainees; and (2) the onlydefendant presently responsible for pretrial detainees inSan Francisco, the sheriff, conceded prior to trial that thechallenged system was unconstitutional.

The trial record and briefs filed before this court belie thealleged lack of interest. The chief of police has vigorously

opposed plaintiffs' contentions. 29 As in Blair, **225 “. . .***164 the extensive briefs in this case demonstrate, . . .

(that) (t)here is no danger . . . the court will be misled bythe failure of the parties adequately to explore and arguethe issues.” (Blair v. Pitchess, supra, 5 Cal.3d at p. 270, 96Cal.Rptr. at p. 50, 486 P.2d at p. 1250.)

*451 [11] Defendants next contend that the SanFrancisco Superior Court bench is an indispensable partyto this action and that the failure to join it deprives thiscourt of jurisdiction. Code of Civil Procedure section 389,revised in 1971 to bring it into conformity with rule 19,

Federal Rules of Civil Procedure, 30 provides in relevantpart that “a person . . . shall be joined as a party in theaction if . . . (2) he claims an interest relating to the subjectof the action and is so situated that the disposition of theaction in his absence may (i) as a practical matter impair

or impede his ability to protect that interest . . . .” 31

The only interests protected by section 389 are personalones which may be prejudiced in a concrete way by a

judgment rendered in the absence of joinder. 32 (See Bankof California v. Superior Court (1940) 16 Cal.2d 516,106 P.2d 879.) For example, in Serrano v. Priest, supra,18 Cal.3d 728, 135 Cal.Rptr. 345, 557 P.2d 929, thiscourt considered whether the interests of the Governorand the Legislature in the constitutionality of the state'sschool financing scheme were such as to render themindispensible parties. The court held that the interestsof the Governor and the Legislature as “lawmakersconcerned with the validity of statutes enacted by them . . .(are) not of the immediacy and directness requisite toparty status . . . .” (Id., at p. 752, 135 Cal.Rptr., at p. 358,557 P.2d, at p. 942.)

The interests of the judges charged with setting bailand deciding motions for own recognizance release aresimilarly remote. Judges are undoubtedly interested in anycase which may affect the exercise of their discretion or theadministration of justice. However, judicial interest *452is no greater here than in any other case which challenges

the constitutionality of statutes or their practices. It doesnot rise to a personal stake in the outcome of the case.(Cf. Pettit v. Gingerich (D.Md.1977) 427 F.Supp. 282,affd. 4 Cir., 582 F.2d 869.) Here, as in Serrano, invocationof the doctrine of indispensability would “thwart ratherthan accomplish justice.” (Bank of California v. SuperiorCourt, supra, 16 Cal.2d at p. 521, 106 P.2d 879.)

IV

The effect of today's decision is neither to undercut theconstitutional right to bail guaranteed by the first clause ofarticle I, section 12 of the California Constitution, nor tocreate a right to OR release in contravention of the second

clause of that sec **226 tion. ***165 33 Nevertheless,the dissent seems to argue that today's decision modifiesthe absolute right to bail and discretionary right to ORrelease mandated by article I, section 12. Nothing couldbe further from the truth.

This court's decision in no way alters the detainee's right tobail. Release on own recognizance and release on bail arealternative and complementary systems. If the detainee isable and chooses to post the amount of bail establishedby the master bail schedule (Pen.Code, s 1269b) or set bythe court (Pen.Code, ss 815a, 1320), he will be released.The additional procedures required at an OR hearing bytoday's decision could not possibly interfere or conflictwith the detainee's right to bail.

Placing the burden of proof on the prosecution concerningthe likelihood that the detainee will appear at future courtproceedings is not tantamount to creating a right to ORrelease and is not inconsistent with retention of discretionby the trial judge. If, after weighing the facts presentedat the OR hearing in accordance with the requirementsof procedural due process as set forth herein, the courtbelieves the detainee is likely not to appear for subsequentcourt proceedings, OR release may be denied. Today'sdecision merely requires, in keeping with well establishedprecedent, that the trial court not exercise its discretionarbitrarily. (See Ex parte Hoge (1874) 48 Cal. 3, 5; In rePodesto, supra, 15 Cal.3d at p. 933, 127 Cal.Rptr. 97, 544P.2d 1297.)

*453 This is not the first time this court has beenrequired to address purported conflicts between specificconstitutional provisions and more general guarantees

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such as the equal protection or due process clauses ofthe state Constitution. In Hawkins v. Superior Court,supra, 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916,it was argued that a finding that denial of a post-indictment preliminary hearing deprived the accused ofthe equal protection of the law was barred by article I,sections 14 and 23 of the California Constitution, whichexplicitly sanctioned the grand jury indicting process.In rejecting this construction, this court stated: “Thestate constitutional provision recognizing the grand jury'sindicting function article I, section 14 is no bar to ourholding herein. . . . (W)hile the Constitution authorizesthe use of grand juries to indict criminal defendants,it leaves to the Legislature and the courts the taskof developing procedures, consistent with other stateconstitutional provisions, for implementing that mode ofinitiating prosecutions.” (Id., at p. 594, 150 Cal.Rptr., atp. 441, 586 P.2d, at p. 922, fn. omitted; see also Serranov. Priest, supra, 18 Cal.3d at p. 773, 135 Cal.Rptr. 345,557 P.2d 929.) Similarly, in the present case, the courtshave the task of developing procedures to ensure thatrele se by bail and release on one's own recognizance areimplemented in a constitutionally proper manner.

Article I, section 12 of the state Constitution wasamended in 1974 by ballot Proposition 7, following arecommendation by the California Constitution RevisionCommission. The commission's comment in support ofits recommendation stated, “[t]he ‘Own Recognizance’system presents a desired alternative to the bail system,which frequently works an injustice on those who cannotafford to post a bail bond.” (Proposed Rev. of Cal. Const.,pt. 5, Cal. Const. Rev. Com. (1971) p. 19; see also, BallotPamp., Proposed Amends. to Cal. Const. with argumentsto voters, Gen. Elec. (Nov. 5, 1974), argument in favorof Prop. 7, p. 28.) This court is merely implementing thespirit of the 1974 amendment in holding that due processrequires the prosecution to bear the burden of proof asto why a detainee would not be released on his ownrecognizance.

V

The judgment of the trial court is modified in two respects.The burden of producing evidence as to community ties isto be with the detainee and the requirement of a writtenstatement by the court of the reasons for the denial of ORrelease is disapproved. As so modified, the judgment is

***166 **227 affirmed. Plaintiffs are to recover theircosts on appeal.

*454 TOBRINER and MOSK, JJ., concur.

NEWMAN, Justice, concurring.I concur in the Chief justice's opinion except that I wouldrely solely on the California Constitution.

CLARK, Justice, dissenting.I dissent.

The majority opinion reflects a fundamentalmisunderstanding of the judiciary's role in our tripartitesystem of government. While purportedly examining atrial court record for error, the majority's real search isfor a platform from which to express policy views inconcluding there exists a denial of due process basedon evidence of its own manufacturer and on trialcourt findings lending no support for that conclusion.From that platform the majority announce they willnot abide by express constitutional and legislative policyas, apparently, they are better qualified to make thosedeterminations.

The majority defensively assert their holding does notcreate a right to own recognizance (OR) release incontravention of article I, section 12 of the California

Constitution. 1 (Ante, pp. 164, 165 of 166 Cal.Rptr., p.—— of —- P.2d.) That section provides that a person“shall be released” on bail by sufficient sureties, and “maybe released” on his or her OR in the court's discretion. TheConstitution thus denies a “right” to OR release, althoughallowing discretionary consideration of an application forOR release. However, by imposing upon the prosecutionthe burden of proving facts warranting denial of a

detainee's application for OR release, 2 the majority createa presumption that a detainee is now entitled to ORrelease. The significant right thus created is contrary tothe express constitutional presumption in favor of bailand against OR release. The judiciary is not empoweredto make rules contrary to the express mandate of the

People. 3

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In opposing the majority's doctrine of government byjudiciary, the following matters are presented: (1) theabsence of a justiciable controversy; (2) the inadequacyof a record to support the majority holding *455 andrules; (3) the existing release system's compliance with dueprocess requirements; (4) the absence of judicial authorityto enact the majority rules.

I. LACK OF A JUSTICIABLE CONTROVERSY

According to Blair v. Pitchess (1971) 5 Cal.3d 258, 96Cal.Rptr. 42, 486 P.2d 1242, a true case or controversymay exist when a taxpayer brings suit pursuant toCode of Civil Procedure section 526a by alleging illegal

government activity. 4 (Id., at p. 269, 96 Cal.Rptr. 42,486 P.2d 1242.) No true case or controversy exists in theinstant proceeding because no adversity exists between theparties despite the broad allowances of Blair.

After suit was brought defendant Donald Scott, asChief of Police of the City and ***167 County ofSan Francisco, was relieved of all **228 responsibilityfor pretrial detainees. He was thus eliminated as alegally interested party and the only remaining legallyinterested defendant Sheriff Richard Hongisto curiouslystipulated prior to trial that the challenged systemis unconstitutional. Instead of defending his office,defendant Hongisto presented evidence intended to assistplaintiffs' case. There was in fact no legally interesteddefendant committed to establishing the propriety of thepresent release procedures. This is dramatically illustratedby the majority's reliance at six different places (ante, pp.154 (fn. 9), 154 (fn. 11), 155, 158, and 159 of 166 Cal.Rptr.,pp. —— - —— (fn. 9), ——, —— (fn. 11), ——, ——, and—— of —- P.2d) on an article authored by no one otherthan defendant Hongisto (Workable Alternatives to thePresent Bail System (1972) 47 State Bar J. 576) in supportof various of their assertions.

When the only legally interested defendant is also anadvocate for plaintiffs' position, there is no truly adversary

proceeding and the proceeding becomes a sham. 5 Therewas simply no controversy between Sheriff Hongisto andplaintiffs. Therefore, the case is not justiciable. Underthese circumstances great danger exists the trial court willbe misled “by the failure of the parties to adequatelyexplore and argue the issues.” (Blair v. Pitchess, supra, 5Cal.3d 258, 270, 96 Cal.Rptr. 42, 50, 486 P.2d 1242, 1250.)

*456 II. THE RECORD AND FINDINGS OF FACTDO NOT SUPPORT MAJORITY CONCLUSIONS

It is indisputable and the record establishes that personswho are arrested and detained prior to trial incur animpairment in preparing for trial. However, reform ofdetention facilities is not the subject of this action and therecord does not reveal that detainees are being deprived ofdue process. The majority's due process argument that theprosecution must bear its newly created burden of provingthat arrestees should not be released on OR evidencesa misunderstanding of what constitutes deprivation ofprocedural due process.

In support of their holding that individual liberty interestsare compromised by existing procedures, the majoritystate that “(a)pproximately one-half of all detainees in SanFrancisco are unable to post bail and are not released ontheir own recognizance. As a direct result, they remainin jail until their cases are resolved.” (Ante, p. 152 of166 Cal.Rptr., p. —— of —-P.2d.) The majority referto no testimony, relying only on plaintiffs' brief setting

forth a statistical argument riddled with deficiencies. 6

Without worthy supporting evidence the majority statethat half the arrestees are confined ***168 **229 forindigency. Heavy reliance is placed on the testimony ofbail bondsman Al Graff who testified that “the peoplewho are being released are the affluent. The poor arestaying in jail.” Again, curiously, Mr. Graff was notqualified as an expert witness on any issue. He certainly*457 is not an expert on questions of affluency versus

indigency. Nor do the trial court findings support the

majority conclusion. 7 In fact, the trial court expresslydisagrees with the majority, stating in its memorandumopinion: “The fact that an arrestee must remain in jailpending release is not due to his indigency. It is due tothe fact that at the bail hearing the judge has determined,in the exercise of his broad discretion, that a particularaccused should not be released on his own recognizance,but that in order to secure his appearance in court, morestringent safeguards are required namely money bail orincarceration.”

Not only is the record devoid of statistical or objectivefacts concerning San Francisco pretrial detentions, it alsolacks evidence that any detainee who might have beenreleased OR as proposed by the majority *458 has

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in fact been prejudiced by reason of detention. Nor isthere support for the majority conclusion that placing theburden of proof of appearing at trial on the arrestee, “isto create among trial courts a ‘. . . Pavlovian response ofmoney bail (and hence a denial of OR release) to everyuncertainty concerning the defendant.’ ” (Ante, p. 156 of166 Cal.Rptr., p. —— of —- P.2d.)

Nowhere in the record is there evidence of specificabuse of discretion by salivating judges in denyingOR release. The facts on which the majority rely aregleaned from meager testimony consisting in the mostpart of overgeneralized and imprecise opinion evidence

of nonexpert witnesses 8 and ***169 **230 fromunacknowledged law review notes which present 17-year-old statistical evidence obtained from the Manhattan Bail

Project. 9 The majority's reliance on facts presented asworthy of judicial notice instead of record facts relevant tothe San Francisco pretrial detention system constitutes anegregious abuse of the doctrine of judicial notice in questof a desired result.

The absence of reliable and objective record facts on whichthe majority can properly rely is particularly significantbecause it confirms the thesis that there has been nobona fide adversary trial or justiciable controversy. Intheir fervor to make policy decisions the majority lackthe information, skill and sophistication only a legislativebody possesses. (See, post, part IV.) Defendant Hongisto'sadvocacy of plaintiffs' position and the absence ofsubstantial evidence in defense of the constitutionallymandated pretrial detention system rendered the triallacking in all traditional hallmarks of the adjudicativeprocess. Trial of this case was not conducted as a bona fideadversary proceeding, and the case is now presented to thiscourt in the form of a one-sided legislative hearing insteadof a justiciable controversy. Naivetee cannot explain themajority's enthusiasm in embracing the trial court's policyproclamations.

*459 III. EXISTING PROCEDURESMEET DUE PROCESS REQUIREMENTS

Assuming arguendo the validity of the majority'sassumption that one-half of all arrestees are detained untiltrial, such detainment does not constitute deprivationof those detainees' due process rights. Upon arrest onprobable cause, the criminal justice system is set into

motion and the arrestee is subjected to constitutionally-permissible deprivations of numerous individual libertiessubject, however, to release on bail and an expeditioustrial, among other things. To state as do the majority that“(a)n individual's interest in his freedom has always beenheld sacrosanct” (ante, p. 156 of 166 Cal.Rptr., p. —— of—- P.2d) as a general maxim justifying a presumptive rightto OR release for all arrestees, is to ignore the existenceof due process safeguards inherent in the requirement thatthere be probable cause warranting deprivation of libertypending process of the state's complaint.

In People v. Ramirez, (1979) 25 Cal.3d 260, 158 Cal.Rptr.316, 599 P.2d 622, relied upon by the majority, this courtset forth guidelines for weighing private and governmentalinterests to evaluate whether procedures employed bythe state safeguarded requisite procedural due processinterests: “(I) dentification of the dictates of due processgenerally requires consideration of (1) the private interestthat will be affected by the official action, (2) the riskof an erroneous deprivation of such interest throughthe procedures used, and the probable value, if any, ofadditional or substitute procedural safeguards, (3) thedignitary interest in informing individuals of the nature,grounds and consequences of the action and in enablingthem to present their side of the story before a responsiblegovernmental official, and (4) the governmental interest,including the function involved and the fiscal andadministrative burdens that the additional or substituteprocedural requirement would entail.” (Id., at p. 269, 158Cal.Rptr., at p. 321, 599 P.2d, at p. 627-28.)

An application of the dictates of Ramirez to the recordfacts in the instant case compels a conclusion contrary tothe majority holding that an individual's liberty interestmust be subordinated to the government's interest inassuring an arrestee's presence at trial.

***170 **231 As to the first guideline set forthin Ramirez, trial court findings are absolutely barrenof reliable evidence in support of the majority's boldassertion that a detainee's liberty interest will be adverselyaffected by a system of discretionary OR release as analternative to bail. As explained, *460 the majorityrely on imprecise opinion testimony and judicial noticeof information and argument published in law reviewarticles. The trial court did not find as a fact and plaintiffscompletely failed to show that any detainee who mighthave been a good OR risk has been denied OR release

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under current San Francisco practices. Without such ashowing of actual injury no due process denials could haveoccurred.

As to the second guideline, no evidence has been presentedindicating risk of an “erroneous deprivation” of anindividual's liberty interest through existing procedures.There are, moreover, numerous “additional or substituteprocedural safeguards” to insure that a detainee willnot be deprived of liberty without due process of law.Arrestees are entitled to a preliminary hearing (Pen.Code,s 859 et seq.) where they are represented by privatelyretained counsel or a public defender in exercising theirright to challenge the existence of probable cause tosustain charges against them. If an arrestee still remains incustody, and does so because he cannot or will not meetthe scheduled bail, he is entitled to move for a reductionin bail (Pen.Code, s 1269c), release on own recognizance(Pen.Code, s 1318), or release through pretrial diversion(Pen.Code, s 1001 et seq.). If an arrestee still remains incustody, he has a right to automatic judicial review of theorder fixing his bail within five days from the time theorder is given (Pen.Code, s 1320). Finally, any decisionresulting in an arrestee's continued detention, such asfixing of bail, denial of OR release and the actual arrestmay be challenged by the traditional routes such as habeascorpus or mandamus. Ramirez characterizes the nature ofdue process in stating “it must be remembered that ‘dueprocess is flexible and calls for such procedural protectionsas the particular situation demands'.” (People v. Ramirez,supra, 25 Cal.3d 260, 268, 158 Cal.Rptr. 316, 321, 599 P.2d622, 627.) It is clear that existing procedural due processsafeguards are completely adequate.

Ramirez ‘s third guideline requires that a person's“dignitary interest” be safeguarded by being informedof the nature, grounds, and consequences of the actionagainst him, and by enabling him to present his sideof the story before a responsible government official.There are no findings or evidence indicating that arresteeshave not been fully informed of the nature, grounds andconsequences of charges and proceedings against them, orthat arrestees were unable to present their side of the storyto responsible government officials. It is clear that existingprocedural due process safeguards more than adequatelyinsure compliance with the third guideline set forth inRamirez.

*461 Finally, Ramirez ‘s fourth guideline requires thegovernmental interest in OR release be balanced againstthe arrestee's liberty interests. It must be obvious thatthe majority's creation of a right to OR release willhave a profound and negative effect on the government'ssubstantial and compelling interest in securing thearrestee's presence at future criminal proceedings. In fact,the trial court stated in its memorandum of decisionthat there is a “compelling state interest in securing theappearance of an accused at court proceedings.” (Italicsadded.)

If the burden is shifted to the state to prove why OR release

should be denied, common sense and past experience 10

indicate that the increased failure to appear at trialwill have serious negative effects on the governmentalinterest. Any delay in expeditious prosecution of criminaldefendants will adversely affect prosecutorial efforts.When defendants fail to appear for **232 any courtproceeding, as will be the case ***171 when OR releaseis made a right, further prosecutions of their cases ceaseuntil they are again arrested and brought to court. Whena defendant fails to appear at trial, witnesses disappearand their memories fade. Police and district attorneypersonnel who had originally processed the case may notbe available. Witnesses may be subject to intimidation.Evidence may be lost or destroyed. If one defendant failsto appear, the case will progress as to the remainingdefendants, resulting in a de facto severance contrary tothe policy established in Penal Code section 1098, all ofwhich increases costs to the state and to the taxpayer inprosecuting those charged with crimes.

Moreover, failure to secure appearance of the accused atfuture court-ordered appearances entails indirect burdenson the government by harming society. A defendantwho is a fugitive may commit additional crimes. If thedefendant is in need of treatment relative to the use ofdrugs or alcohol, or of psychiatric rehabilitation, suchassistance is delayed. The deterrent effect of punishment isdiminished after a long delay. Public funds must be spentto relocate and rearrest a fugitive, sometimes requiring theexpense of extradition. In cases such as murder, rape, orchild molestation, a delay prolongs the mental anguish ofthe surviving victims and witnesses. If the failure to appearoccurs on jury trial day, there is a waste of public fundsused to pay for the expenses and fees of jurors, victims,and witnesses who have been *462 summoned for trial,

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not to mention the cost of providing for a trial court thatmay go unused.

Finally, any delay in expeditious prosecution of criminaldefendants operates in the fugitive defendant's favor.Moreover, a cunning fugitive in our mobile society mayavoid apprehension altogether.

The majority's conclusion that procedural safeguards inthe existing pretrial detention system in San Franciscodeprives detainees of fundamental liberty and due processof law is contrary to the very Ramirez guidelineson which the majority purport to rely for balancinggovernmental against individual interests. In view ofexisting pretrial due process procedures, the majority'sfailure to substantiate their claim that arbitrary pretrialadjudicative procedures exist in San Francisco withrecord evidence and the fact that a “compelling” and“substantial” state interest exists in securing the presenceof an arrestee at future proceedings against him whollyvitiate the majority's conclusion that existing procedural

safeguards are unconstitutional. 11

IV. THE MAJORITY ENGAGEIN JUDICIAL LEGISLATION

A central issue in this case is whether this courthas authority to modify constitutionally mandatedpretrial release procedures, especially in view of existingprocedural due process guarantees. (See, ante, partIII.) Authority for court modification is not found inProposition 7. That proposition provides an “absoluteright” to bail (In re Newbern (1961) 55 Cal.2d 500, 503, 11Cal.Rptr. 547, 360 P.2d 43) whereas OR release, which themajority now create as a right, is only “an alternative tobail in appropriate cases.” (In re Smiley (1967) 66 Cal.2d606, 613, 58 Cal.Rptr. 579, 583, 427 P.2d 179, 183.) ORrelease is not a matter of right but a matter of courtdiscretion depending on whether good cause is shown forrelease. While this court has a general power to interpretconstitutional provisions consistent with due processrequirements, it has no authority to provide new meaningsto define the *463 express language of the Constitution(Ross v. City of Long Beach (1944) 24 Cal.2d 258, 148P.2d 649), or to revise a system expressly established bya constitutional **233 command of equal dignity todue process mandates. If, as the majority argue, ***172a conflict exists between due process requirements and

Proposition 7's explicit establishment of bail as a matter ofright and discretionary OR release, this court is requiredto adhere to the specific constitutional provision insofar asthe two are capable of being constitutionally harmonized.

Proposition 7's explicit creation of bail as a right andOR release as a discretionary alternative constitute anestablishment of standards and procedures which underour tri-partite system of representative government are tobe implemented not by this court but by the Legislature.(See People v. Municipal Court (Runyan) (1978) 20Cal.3d 523, 143 Cal.Rptr. 609, 574 P.2d 425.) This courtlacks“quasi-legislative rule-making power.” (Reynolds v.Superior Court (1974) 12 Cal.3d 834, 948, 117 Cal.Rptr.437, 528 P.2d 45.) Moreover, when rules and proceduresenacted by the Legislature are consistent with theconstitutional mandate they cannot be qualified by thiscourt. (People v. Municipal Court (Runyan), supra, 20Cal.3d 523, 143 Cal.Rptr. 609, 574 P.2d 425.)

The initiative to modify OR release procedures adoptedby the majority in this case not only offends Proposition 7,but usurps legislative prerogative even assuming arguendosuch initiative is constitutionally permissible. In fact,the Legislature has not been remiss in addressing thisserious issue. Assemblyman Berman introduced AssemblyBill No. 2 in December 1978 (approved Sept. 1979, eff.Jan. 1981), substantially reforming release procedures.(Stats.1979, ch. 873 (8 West's Cal.Legis.Service, p. 3363).)The Berman bill significantly reforms pretrial detentionby providing in section 1270 that persons arrested formisdemeanors are entitled to OR release as a matter ofright, “(U)nless the court makes a finding upon the recordthat an own recognizance release will not reasonablyassure the appearance of the defendant as required.” Itfurther provides in section 1269d that a person arrestedfor a misdemeanor who is not entitled to OR releaseneed post only 10 percent of the fixed bail to obtain

release. 12 Although the Legislature has not created newrules pertaining to felony arrestees this fact does notvest in this court a right to usurp the Legislature's rule-making function by legislating under the guise of *464judging. The Berman bill is a significant reminder thatthe proper branch of government to initiate appropriatereforms within constitutional limits is the Legislature and

not this court. 13

The majority's conclusions are clearly erroneous. But themajority's most serious error is in abandoning the court's

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traditional role of appellate review by improperly creatingpolitical policy. We again usurp the jurisdiction of theLegislature and other rule-making agencies of this state.

The judgment should be reversed and the trial courtdirected to dismiss the action.

RICHARDSON and MANUEL, JJ., concur.

All Citations

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Footnotes1 The California Legislature recently enacted a 10 percent deposit bail reform measure effective on January 1, 1981. (Stats.

1979, ch. 873 (No. 7 West's Cal.Legis. Service, p. 3363).) The eventual availability of this additional form of release doesnot materially affect this court's analysis. During its limited period of operation, the statute will provide no direct relief forfelony detainees. Although felony detainees may experience minor benefits to the extent that the resources of the SanFrancisco Bail Project (hereafter, the OR project) are no longer employed interviewing misdemeanor detainees, this reliefshould be minimal since the OR project already concentrates its limited resources on interviewing felony detainees. (Fora discussion of the OR project's operation, see infra, pp. 151-152 of 166 Cal.Rptr., pp. 151-152 of 166 P.2d.)

2 “To ‘book’ signifies the recordation of an arrest in official police records, and the taking by the police of fingerprints andphotographs of the person arrested, or any of these acts following an arrest.” (Pen. Code, s 7, subd. 21.)

3 Verification entails confirming, generally by telephone conversations with two or three references supplied by thedetainee, the information that he has given to the project.

4 Applications may be presented to the court at a formal hearing or upon an ex parte motion in chambers. Throughout thisopinion, the discussion of procedures at the OR hearing applies to both types of motions.

5 The plaintiffs launched a multifaceted attack on the entire pretrial release and detention system employed in SanFrancisco. Beyond their procedural due process claims, plaintiffs contended that the system constitutes a violation ofequal protection and substantive due process, subjects detainees to cruel and unusual punishment, deprives detaineesof the privilege against self-incrimination, and subjects detainees to excessive bail in violation of the applicable provisionsof both the federal and state Constitutions.

The trial court found that the pretrial release system as provided in the Penal Code and as applied in practice is notunlawful in those several regards. The plaintiffs have raised the same claims on appeal. However, today's holdingson the procedural due process issues presented will undoubtedly have some impact on the other constitutional claimsraised. Should implementation of the relief ordered today not eliminate the plaintiffs' perceived need to raise these otherissues, plaintiffs are not precluded from reasserting them, either in a new action or under the trial court's reservation ofjurisdiction to issue “further relief as necessary and appropriate.” Under these circumstances, this court finds it neithernecessary nor appropriate at this time to address those issues or to disturb the trial court's rulings thereon.

6 Due process analysis under the federal Constitution requires a finding of a protected liberty or property interest beforeany discussion of procedures can be reached. (Morrissey v. Brewer (1972) 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33L.Ed.2d 484.) In interpreting the federal clause, the United States Supreme Court has held that a prisoner may derive adue process liberty interest from either the state or federal Constitution or certain types of state statutes. (Meachum v.Fano (1976) 427 U.S. 215, 226, 96 S.Ct. 2532, 2539, 49 L.Ed.2d 451.) In the present case, the detainee is concerned withhis freedom, a liberty interest explicitly protected by the federal Constitution. Accordingly, our analysis of the plaintiffs'due process claims under the California Constitution also applies to their claims under the federal Constitution.

7 The dissent applies the Ramirez framework of analysis to evaluate the substantive sufficiency of the statutory provisionsauthorizing pretrial release. (Dis. opn., post, pp. 169-170 of 166 Cal.Rptr., pp. 169-170 of 166 P.2d.) Such use is amisapplication of Ramirez, a procedural due process case, and evidences a fundamental misunderstanding of the issueaddressed by this court. This court is not determining what kinds of substantive pretrial release procedures should beavailable. Rather, this court is reviewing the constitutional sufficiency of the procedures used to administer the existingstatutory scheme.

8 This provides less than 17 square feet of space per inmate. This is substantially less than the minimum amount ofspace per inmate considered necessary by courts and prison authorities for the psychological well-being of the detainee.(Campbell v. McGruder (D.C.Cir. 1978) 580 F.2d 521, 536, fn. 28; Battle v. Anderson (10th Cir. 1977) 564 F.2d 388, 395.)

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9 This conclusion has been corroborated by numerous courts and commentators. (E. g., Stack v. Boyle (1951) 342 U.S.1, 8, 72 S.Ct. 1, 5, 96 L.Ed. 3; Smith v. Hooey (1969) 393 U.S. 374, 379-380, 89 S.Ct. 575, 577-578, 21 L.Ed.2d 607;Cohen, Wealth, Bail, and the Equal Protection of the Laws (1978) 23 Vill.L.Rev. 977, 1028-1029 (hereafter Cohen);Thaler, Punishing the Innocent: The Need for Due Process and The Presumption of Innocence Prior to Trial (1978)Wis.L.Rev. 441, 455-459 (hereafter Thaler); S.F.Com. on Crime, A Report on the Crim.Ct. of S.F., Pt. II, Bail and O.R.Release (1971) p. 12 (hereafter Committee on Crime); Hongisto & Levine, Workable Alternatives to the Present BailSystem (1972) 47 State Bar J. 577, 578 (hereafter Hongisto); Younger, It's Time to Forfeit Bail (1973) 5 Sw.U.L.Rev. 262,265 (hereafter Younger); Foote, The Coming Constitutional Crisis in Bail: II (1965) 113 U.Pa.L.Rev. 1125, 1146-1150;Comment, Beyond the Bail System: A Proposal for Pretrial Release in California (1969) 57 Cal.L.Rev. 1112, 1123-1124(hereafter Beyond the Bail System ).)

10 See also Cohen, supra, at page 1028; Beyond the Bail System, supra, at page 1123; Comment, Trends in OwnRecognizance Release: From Manhattan to California (1974) 5 Pacific L.J. 675, 689 (hereafter Trends ).

11 See Gerstein v. Pugh (1975) 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54; United States v. Marion (1971) 404U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468; Lasker, Presumption Against Incarceration (1979) 7 Hofstra L.Rev.407, 413; Thaler, supra, at page 452; Comment, Incarcerating the Innocent: Pretrial Detention in Our Nation's Jails (1972)21 Buffalo L.Rev. 891, 901; Hongisto, supra, at page 578.

12 To avoid possible misuse of this third factor, it should be emphasized that only where the most serious offenses arecharged can the severity of sentence be considered dispositive of the OR release decision.

13 Although the length of detention may be limited, the detainees “are nevertheless incarcerated against their will, a mostbasic form of personal liberty deprivation.” (Conservatorship of Roulet, supra, 23 Cal.3d at p. 224, 152 Cal.Rptr. at p.428, 590 P.2d at p. 4; People v. Olivas, supra, 17 Cal.3d at pp. 244-245, 131 Cal.Rptr. 55, 551 P.2d 375.) Moreover,the loss of liberty limits the individual's ability to communicate freely with counsel and witnesses. His restricted abilityto prepare for trial may lead to a more permanent loss of liberty. (Cf. Conservatorship of Roulet, supra, 23 Cal.3d at p.234, 152 Cal.Rptr. 425, 590 P.2d 1.)

14 The professional bondsman called by the defendants testified, “we have always felt a lot of people should be OR'd andstill a lot of people are laying in jail that should be released OR . . . .”

15 Estimates elicited at trial establish that approximately 50 percent of those persons arrested in Washington, D.C., andPortland, Oregon, are released on their own recognizance as compared to only about 10 percent in San Francisco. Asa result, overall detention rates in Washington, D.C., and Portland, Oregon, are 5 percent and 6 percent respectivelysubstantially less than the overall detention rate in San Francisco.

16 The San Mateo project employed an interviewing and point-system recommendation process similar to that employed inSan Francisco. See ante, at pp. 151-152 of 166 Cal.Rptr., at pp. 151-152 of 166 P.2d.)

17 The gross failure-to-appear rate excludes those individuals who voluntarily appear in court after missing an appearance.

18 As of January 1, 1981, section 1320 will be repealed and replaced by new and different provisions. (See Stats. 1979,ch. 873, ss 11, 13.)

19 A decision contrary to this court's opinion was reached in Kawaichi v. Madigan (1975) 53 Cal.App.3d 461, 126 Cal.Rptr.63. However, that court did not provide any reasons for its decision and undertook its analysis without the benefit of ourdecision in People v. Ramirez, supra, 25 Cal.3d 260, 158 Cal.Rptr. 316, 599 P.2d 622. To the extent the decision inKawaichi is inconsistent with this court's holding today, that decision is specifically disapproved.

20 Section 526a states in relevant part:

“An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, orinjury to, the estate, funds, or other property of a county, town, city or city and county of the state,may be maintained against any officer thereof, or any agent, or other person, acting in its behalf,either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay,or, within one year before the commencement of the action, has paid, a tax therein.”

Plaintiffs established at trial that: (1) they are residents of, and pay property taxes to, the City and County of SanFrancisco; (2) Police Chief Scott and Sheriff Hongisto were the officials charged with the custody of all pretrialdetainees; and (3) monies raised by general property taxes are expended by the City and County of San Francisco tomaintain the challenged pretrial release and detention system.

21 See, for example, White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222 (intelligence gathering inuniversity classrooms); Adams v. Department of Motor Vehicles (1974) 11 Cal.3d 146, 113 Cal.Rptr. 145, 520 P.2d 961(garagemen's lien law); Love v. Keays (1971) 6 Cal.3d 339, 98 Cal.Rptr. 811, 491 P.2d 395 (sheriff's enforcement methodsin unlawful detainers); Serrano v. Priest (1971) 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241 (suit to challenge state

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financing of public schools); Regents of University of California v. Superior Court (1970) 3 Cal.3d 529, 91 Cal.Rptr. 57, 476P.2d 457 (resolution to terminate the employment of professors who were avowed communists); Vogel v. County of LosAngeles (1967) 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961 (suit to challenge loyalty oath required of public employees);Wirin v. Horrall (1948) 85 Cal.App.2d 497, 193 P.2d 470 (suit to enjoin practice of illegal searches of automobiles).

22 In Gould, supra, taxpayers sued county law enforcement officials and the presiding judges of the superior and municipalcourts to enjoin the prosecution of obscenity cases in which those taxpayers were charged as defendants. The Court ofAppeal held that section 526a did not authorize a taxpayer suit against judicial officers because, inter alia, the plaintifftaxpayers in that case already had standing as criminal defendants to challenge the alleged unconstitutionality of thestatute under which they were being prosecuted. In dictum, the court seemed to suggest that the same result would follow,at least as to the judicial officers, even if plaintiffs were not themselves the defendants in the criminal action becauseother criminal defendants would have standing and incentive to sue.

23 In Di Suvero, supra, a taxpayer sued county law enforcement officials and the presiding judges of the county's superiorand municipal courts to enjoin implementation of an administrative policy of the courts concerning criminal defendantsdesiring to represent themselves. The taxpayer was not himself a criminal defendant. Relying solely on the Gould dictum,the court held that a taxpayer could not maintain an action against either judicial or nonjudicial officers where the allegedlyillegal policy could be challenged by a person directly affected by that policy.

24 Gould has been criticized as an unreasonable restriction on the taxpayers' suit which “finds no support in the applicablelaws.” (Collins & Myers, The Public Interest Litigant in California: Observations on Taxpayers' Actions (1977) 10 LoyolaL.A.L.Rev. 329, 339 (hereafter The Public Interest Litigant).) “Gould seems to imply that a plaintiff must pursue thenontaxpayer's action. But to do so might well result in inadequate relief and in the continuation of some illegal or wastefulgovernmental practice, thereby frustrating the very purpose of taxpayers' suits. For example, an injunction may beobtained in a taxpayer's action without any showing of special damage to the particular plaintiff. However, injunctiverelief might be impossible to achieve in a private civil action where more stringent rules of traditional equitable reliefexist.” (Id.) The point is well illustrated by Card v. Community Redevelopment Agency (1976) 61 Cal.App.3d 570, 575,131 Cal.Rptr. 153.

25 See Stanson v. Mott (1976) 17 Cal.3d 206, 223, 130 Cal.Rptr. 697, 551 P.2d 1; Serrano v. Priest, supra, 5 Cal.3d atpage 618, 96 Cal.Rptr. 601, 487 P.2d 1241; Regents of University of California v. Superior Court, supra, 3 Cal.3d 529,91 Cal.Rptr. 57, 476 P.2d 457; Gogerty v. Coachella Valley Junior College Dist. (1962) 57 Cal.2d 727, 21 Cal.Rptr.806, 371 P.2d 582; see also Mock v. City of Santa Rosa (1899) 126 Cal. 330, 58 P. 826 (antedating s 526a); Card v.Community Redevelopment Agency, supra, 61 Cal.App.3d 570, 131 Cal.Rptr. 153; Subriar v. City of Bakersfield (1976)59 Cal.App.3d 175, 130 Cal.Rptr. 853; but see Citizens' Etc. Pensions v. Bd. of Supervisors (1949) 91 Cal.App.2d 658,205 P.2d 761 (declaratory relief denied; remedy at law adequate).

26 See, for example, Stanson v. Mott, supra, 17 Cal.3d at pages 226-227, 130 Cal.Rptr. 697, 551 P.2d 1; Mines v. Del Valle(1927) 201 Cal. 273, 257 P. 530, disapproved on other grounds in Stanson v. Mott, supra.

27 See, for example, Adams v. Department of Motor Vehicles, supra, 11 Cal.3d 146, 113 Cal.Rptr. 145, 520 P.2d 961.

28 Since section 526a authorizes taxpayer suits for declaratory relief, the further contention that this suit lacks justiciabilitybecause plaintiffs have not satisfied the “actual controversy” requirements of Code of Civil Procedure section 1060 mustalso fail. An action, such as this one, which meets the criteria of section 526a satisfies case or controversy requirements.(Blair v. Pitchess, supra, 5 Cal.3d at p. 269, 96 Cal.Rptr. 42, 486 P.2d 1242. See also White v. Davis, supra, 13 Cal.3dat p. 764, 120 Cal.Rptr. 94, 533 P.2d 222.)

29 At the seven day trial, defendant Scott cross-examined plaintiffs' witnesses and called on his own behalf on assistantdistrict attorney for the City and County of San Francisco, the executive director of the Advisory Board of Surety Agents,and a local bondsman. Contrary to the dissent's suggestion, Scott's brief in opposition to plaintiffs' petition for hearingis not his only brief before this court. The court also has before it Scott's briefs as respondent and cross-appellant inthe Court of Appeal, which affirmatively challenge the propriety of the trial court's rulings in plaintiffs' favor and answerplaintiffs' claims of error on the substantive issues. In addition, respondent has filed a post-oral argument letter brief inthis court addressing the substantive issues. In short, defendant has at all times on appeal contested plaintiffs' claimsand has been ably represented by the San Francisco City Attorney's Office. It is also noted that the court has receivedamicus briefs in support of Scott's position on the substantive questions presented from the California District Attorneys'Association, the District Attorney of Los Angeles County, the Capitol City Bail Association, and the California Board ofSurety Agents. (See Jess v. Hermann (1970) 26 Cal.3d 131, 136, 161 Cal.Rptr. 87, 604 P.2d 202.)

30 Law Revision Commission comment, Code of Civil Procedure section 389; Serrano v. Priest, supra, 18 Cal.3d 728 atpage 753, footnote 27, 96 Cal.Rptr. 601, 487 P.2d 1241.

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31 Defendants do not contend that the judges are indispensible under clauses (1) or (2)(ii) of subdivision (a) of section 389.Manifestly, complete relief can be accorded among those already parties (cl. (1)), and the failure to join judges does notsubject the parties to any risk of incurring multiple obligations (cl. (2)(ii)).

32 See Federal Rules Advisory Committee Note, cited in the California Law Revision Commission comment to Code of CivilProcedure section 389 (14 West's Code Civ. Proc. (1973 ed.) p. 223). The commission stated that the explanatory noteprepared by the advisory committee “is particularly helpful in describing the nature and effect of Section 389.” (Ibid.)

33 Article I, section 12 provides: “A person shall be released on bail by sufficient sureties, except for capital crimes whenthe facts are evident or the presumption great. Excessive bail may not be required. (P) A person may be released onhis or her own recognizance in the court's discretion.

1 Section 12 provides: “A person shall be released on bail by sufficient sureties, except for capital crimes when the factsare evident or the presumption great. Excessive bail may not be required. (P) A person may be released on his or herown recognizance in the court's discretion.” (Italics added.)

2 The majority hold, inter alia, that “the prosecution must bear the burden of proof concerning the detainee's likelihood ofappearing at future court proceedings.” (Ante, p. 161 of 166 Cal.Rptr., p. —— of —-P.2d.)

3 By an initiative measure the People have expressly adopted current bail and OR release provisions. Article I, section12, requiring bail by sufficient sureties was mandated in 1974 by ballot Proposition 7, and is hereinafter referred to asProposition 7.

4 Section 526a provides in pertinent part: “An action to obtain a judgment, restraining and preventing any illegal expenditureof, waste of . . . the . . . funds, . . . of a . . . city and county . . . may be maintained against any officer thereof . . . by acitizen resident therein . . . who is assessed for and is liable to pay . . . a tax therein.”

5 Incredibly, the majority state the “chief of police has vigorously opposed plaintiffs' contentions,” arguing that as “in Blair, . . .‘the extensive briefs in this case demonstrate . . . (that) (t)here is no danger . . . the court will be misled by the failure ofthe parties adequately to explore and argue the issues.’ ” (See Blair v. Pitchess, supra, 5 Cal.3d 258, 270, 96 Cal.Rptr.42, 486 P.2d 1242; ante, p. 163 of 166 Cal.Rptr., p. —— of —- P.2d.)

Such statement is remarkable when considering the only opposition to plaintiffs' petition for hearing submitted to thiscourt by a named defendant is a seven-page answer to the petition challenging only plaintiffs' standing to sue underCode of Civil Procedure section 526a. Moreover, in recounting Scott's “vigorous” opposition, the majority note thatdefendant Scott called but three witnesses in the seven-day trial, the testimony of one of whom is extensively reliedon by the majority in support of their assertions. (Ante, pp. 163 (fn. 29), 152, 158 (fn. 14) of 166 Cal.Rptr., pp. ——(fn. 29), ——, —— (fn. 14) of —- P.2d.)

6 The argument is that of approximately 56,000 San Francisco arrestees in 1974, roughly one-half were charged withmisdemeanors and one-half with felonies. It is assumed, without any adequate evidentiary basis, that only one-half(14,000) of the misdemeanor arrestees were released on citation. Subtracting this figure from the 56,000 arrestees,a figure of 42,000 is arrived at, from which approximately 9,400 releases on bail and 2,900 releases through the SanFrancisco OR Project are subtracted. The result (29,700) is the number of arrestees hypothesized as remaining in pretrialconfinement. This number inflates the number of actual detainees because plaintiffs assume that the only arresteesreleased on their own recognizance are those released under the auspices of the San Francisco OR Project, while totallyignoring the roles of private attorneys and the public defender.

7 Findings of fact pertinent to OR release issues are as follows: “7. Arrestees remain in detention unless (a) released bycitation, (b) released on own recognizance or (c) released on bail. (P ) 8. Upon being booked into City Prison, all arrestees(other than ‘holds' and those charged with non-bailable offenses) are allowed immediate release upon the posting ofa bail bond in the amount specified in the master bail schedule for the offenses charged or in such greater or lesseramount as may subsequently be set by court order. (P ) . . . (P ) 9. Upon being booked into City Prison all arrestees(other than ‘holds' and those charged with non-bailable offenses) are allowed to apply for release on own recognizance.Arrestees are allowed to apply to the San Francisco Bail Project for assistance in obtaining ‘O.R.’ releases. The Projectstaff interviews some arrestees and determines whether an individual has sufficient local contacts assuring probableappearance in court. (P ) The criteria for determining O.R. release include a local address and the length of time at suchaddress, family ties, employment status and means of support and any prior criminal record. If sufficient criteria exist, theProject makes a recommendation to the court for release. In the court's discretion the arrestee may then be released onhis own recognizance. If the court does not find sufficient local contacts assuring probability of appearance, or otherwisedecides against release in its discretion, O.R. release is denied and release must be obtained on bail. (P ) The criteriautilized by the Project and eventually presented to the court in determining O.R. release are relevant to an arrestee'sreliability to appear and are related to the purpose of assuring the arrestee's appearance at court proceedings. (P ) 10.

Van Atta v. Scott, 27 Cal.3d 424 (1980)

613 P.2d 210, 166 Cal.Rptr. 149

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Those arrestees who are unable to post bail have the right to apply to the court for O.R. release, and have the burdenof proof in making such application. Generally, petitions for O.R. release are presented to the court by a staff member ofthe Project. (P ) 11. The power of the court to release an arrestee on his own recognizance is purely discretionary andpermissive. The courts generally do not issue written findings and reasons for the granting or denial of O.R. releases.(P ) 12. The Project interviews some but not all willing applicants and if the criteria for O.R. release are met, only thenis a recommendation made to the court. A substantial number of individuals are not recommended because the criteriaare not met. All arrestees cannot be released on own recognizance. (P ) 13. Pretrial detention occurs either becausearrestees lack financial resources to post bail or because the criteria for O.R. release are not met, or a combination ofboth. (P ) 14. As to some arrestees, bail appears to act as a deterrent to flight and give some assurance of appearancein court proceedings. The court is not convinced that all arrestees presently released on bail can safely be released ontheir own recognizance or that money bail should be eliminated as a form of deterrent to flight.”

8 Not only is Mr. Graff quoted for his opinion testimony but the majority also quote at length from the testimony of a deputysheriff's opinion on the question of the moral deterioration of prisoners (ante, p. 155 of 166 Cal.Rptr., p. —— of —- P.2d),rely on corroboration by “numerous courts and commentators” of what the majority deem to be favorable evidence (ante,p. 153 of 166 Cal.Rptr., p. —— of —-P.2d) and rely on opinion testimony of “all witnesses” that “many persons . . .detained in San Francisco jails . . . could safely be released OR.” (Ante, p. 158 of 166 Cal.Rptr., p. —— of —- P.2d.)

9 A substantial number of the majority's contentions are derived from Rankin, The Effect of Pretrial Detention (1964) 39N.Y.U.L.Rev. 641, and Ares, The Manhattan Bail Project : An Interim Report on the Use of Pretrial Parole (1963) 38N.Y.U.L.Rev. 67.

10 An example of how jump rates increase when own recognizance release programs are expanded is documented in astudy cited in Mosk, The Purpose of Bail in the Administration of Justice (Jan.1973) Chi.Bar Rec. 183, 188-189.)

11 Although the majority elect not to analyze the bail system under federal equal protection and due process grounds, such ananalysis would similarly fail. Even if the majority could find evidence to support a contention that a legislative classificationinvidiously discriminated against indigents, such a classification scheme would not be subject to attack because (1) theSupreme Court of the United States has explicitly held that wealth is not a suspect classification (San Antonio Ind. SchoolDist. v. Rodriguez (1973) 411 U.S. 1, 93 S.Ct. 1278, 1294), 36 L.Ed.2d 16, and (2) a rational basis for bail exists.

12 We are not now called upon to express any view as to the validity of the Berman bill, as upon a proper challenge thereto.

13 The majority's failure to specify the degree of the burden of proof placed on the prosecution is a technical flaw in theiropinion, demonstrating a court's lack of legislative skills.

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.